E-Filed Document Sep :18: CA Pages: 19 IN THE SUPREME COURT OF MISSISSIPPI. No CA-00138

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1 E-Filed Document Sep :18: CA Pages: 19 IN THE SUPREME COURT OF MISSISSIPPI No CA OLSHAN FOUNDATION REPAIR COMPANY OF JACKSON, LLC d/b/a OLSHAN FOUNDATION SOLUTIONS and WAYNE BROWN APPELLANTS versus PHILLIP R. MOORE, GLORIA MOORE, and KATELYN A. MOORE APPELLEES ON APPEAL FROM THE CIRCUIT COURT OF PERRY COUNTY, MISSISSIPPI BRIEF OF APPELLEE ORAL ARGUMENT NOT REQUESTED Robin L. Roberts, MSB No Christopher D. Nobles, MSB No ROBERTS AND ASSOCIATES 307 W. Pine Street Post Office Box 1953 Hattiesburg, MS Telephone: Facsimile: robin@rablaw.net chris@rablaw.net Attorneys for Phillip Moore, Gloria Moore, and Katelyn Moore

2 IN THE SUPREME COURT OF MISSISSIPPI No CA OLSHAN FOUNDATION REPAIR COMPANY OF JACKSON, LLC d/b/a OLSHAN FOUNDATION SOLUTIONS and WAYNE BROWN APPELLANTS versus PHILLIP R. MOORE, GLORIA MOORE, and KATELYN A. MOORE APPELLEES TABLE OF CONTENTS Page Table of Contents i Table of Authorities ii Certificate of Interested Persons Statement of the Issues Statement of the Case Statement of the Facts Summary of the Argument Argument Conclusion Certificate of Service Page -i-

3 TABLE OF AUTHORITIES Cases Adams Community Care Center LLC, v. Reed, 37 So. 3d 1155 (Miss. 2010) , 13 Andrews v. Ford, 990 So. 2d 820, 822 (Miss. App. 2008) Equal Employment Opportunity Commission v. Waffle House Inc., 122 S. Ct. 754 (2001) Facilities, Inc. v. Rogers-Usry Chevrolet, Inc., 908 So. 2d 111 (Miss. 2005) Grigson v. Creative Artists Agency L.L.C., 210 F.3d 524, 528 (5th Cir. 2000) Hattiesburg Health & Rehab Center, LLC v. Brown, 176 So. 3d 17 (Miss. 2015) , 11, 12 Jones v. Singing River Health Ser. Found., No. 1:14cv447, 2016 WL (S.D. Miss. 2016) , 10, 11 Leach v. Tingle, 586 So. 2d 799, (Miss. 1991) Marcum v. Miss. Valley Gas Co., 672 So. 2d 730, 733 (Miss. 1996) Noble Drilling Servs., Inc. V. Certex USA, Inc., 620 F. 3d 469, th (5 Cir. 2010) Price v. Credit Acceptance Corp., No 2:10cv81, 2010 WL (S.D. Miss. 2010) , 11 Quinn v. Mississippi State Univ., 720 So. 2d 843, 851 (Miss.1998) Rigby v. Sugar's Fitness & Activity Ctr., 803 So. 2d 497, 499 (Miss. App. 2002) Scruggs v. Wyatt, 60 So. 3d 758 (Miss. 2011) , 10 Simmons Housing, Inc. v. Shelton ex rel. Shelton, 36 So. 3d 1283 (Miss. 2010) , 10 Stampley v. Gilbert, 332 So. 2d 61 (Miss. 1976) Stewart ex. Rel Womack v. City of Jackson, 804 So. 2d. 1041, 1050 (Miss. 2002) Terminix Intern., v. Rice, 904 So. 2d 1051 (Miss. 2004) Page -ii-

4 CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons and entities have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualifications or recusal: 1. Gloria Moore, Individually and as Natural Mother, Next Friend and Natural Guardian of Katelyn A. Moore Appellee/Plaintiff 2. Katelyn A. Moore Appellee/Plaintiff 3. Phillip R. Moore Appellee/Plaintiff 4. Robin L. Roberts Counsel for Appellees/Plaintiffs 5. Christopher D. Nobles Counsel for Appellees/Plaintiffs 6. Roberts & Associates Counsel for Appellees/Plaintiffs 7. Olshan Foundation Repair Company of Jackson, LLC d/b/a/ Olshan Foundation Repair Appellant Defendant 8. Wayne Brown Appellant/Defendant 9. LeAnn W. Nealy Counsel for Appellants/Defendants 10. Richard M. Dye Counsel for Appellants/Defendants 11. Kathleen Ingram Carrington Counsel for Appellants/Defendants 12. Butler Snow LLP Counsel for Appellants/Defendants /s/ Robin L. Roberts Robin L. Roberts, Attorney for Appellees Page 1 of 16

5 STATEMENT OF ISSUES 1. Did the Circuit Court err in denying Olshan and Wayne Brown s Motion to Compel Arbitration? 2. Whether Katelyn Moore could be considered a third-party beneficiary of the Agreement, or if estoppel principles apply, so as to allow Olshan to enforce the arbitration provision as to Katelyn s claims. 3. Whether Katelyn Moore, as an autistic, non-signatory, non-party to the contract, is bound to arbitrate her claims as a third-party beneficiary to the agreement, or by application of estoppel principles. Page 2 of 16

6 STATEMENT OF THE CASE This matter comes on appeal subsequent to Circuit Judge Jon Mark Weathers denial of Olshan Foundation Repair of Jackson, LLC, d/b/a Olshan Foundation Solutions ( Olshan ) and Wayne Brown s Motion to Compel Arbitration against Katelyn Moore in the Circuit Court of Perry County, Mississippi. Katelyn, along with her parents Phillip and Gloria Moore, sued Olshan and Wayne Brown, as the employee and GM of Olshan, in Perry County Circuit Court for breach of contract, breach of warranty, negligence, fraud, and Intentional/Negligent Infliction of Emotional Distress (INIED) claims stemming from Olshan s failure to competently repair their foundation. The foundation work was governed by an Agreement that contained an Arbitration Provision on the back. The Agreement was signed by Phillip and had Gloria s name printed at the top; however, there was no mention of Katelyn anywhere in the contract, by name or otherwise. When Olshan and Wayne Brown moved to compel arbitration, the Circuit Court granted the motion as to Katelyn s parents, but denied it as to Katelyn Moore. Katelyn Moore suffers from severe autism and is not legally capable of entering into a contract or comprehending the terms of any such contract. She, therefore, is not bound by the contract s arbitration agreement as a thirdparty beneficiary or as a matter of estoppel because she was not named as a party or part of a class in said contract and did not embrace the contract s terms nor is her suit reliant solely upon the contract s terms. Page 3 of 16

7 STATEMENT OF THE FACTS On June 10, 2013, Phillip Moore and Olshan entered into an Agreement under which Olshan agreed to perform certain foundation repair work to the Moore residence located at 205 Dykes Chapel Road, Richton, Mississippi. (R. at 42-43; RE at 1-2) Phillip and his wife Gloria are the owners of the property. Katelyn Moore is their adult daughter who suffers from a severe form of autism which Olshan and Brown have not contested. (Hr g Tr. at 26; RE at 13) She has been living at the home in question with her parents for a majority of her life. Though she is a resident, she is not an owner. The parties agreed that Olshan would install 23 exterior and 4 interior simple pressed pilings and 4 concrete patches at a total cost of $15, (R. at 42-43; RE at 1-2) They also agreed that Olshan would perform the repair in a workmanlike manner. (R. at 42-43; RE at 1-2) The Agreement is a one page, front-and-back contract that contains the negotiated terms on the front of the document and the boilerplate language on the back, including the arbitration provision. (R. at 42-43; RE at 1-2) The arbitration agreement is in a small font, but not hidden, nor is it written in a different typeface or style than the rest of the terms above and below it; indistinguishable from the rest of the terms. (R. at 42-43; RE at 1-2) Gloria Moore s name is printed at the top of the first page, identified as the Owner, but Phillip Moore s signature and initials adorn the contract. (R. at 42-43; RE at 1-2) The contract does not list Katelyn Moore anywhere on the contract nor does it list a class into which Katelyn would fall. (R. at 42-43; RE at 1-2) Due to her autism, Katelyn is not legally able to consent or reasonably understand any contract or agreement. On November 10, 2016, the Circuit Court of Perry County brought on for hearing Olshan and Brown s Motion to Compel Arbitration and Stay Proceedings. (R. at 68; RE at 3) (Hr g Tr. at 2; RE at 12) At that hearing, Judge Weathers found that the contract and its embedded arbitration agreement were sufficiently broad to ensnare both Phillip Moore and Gloria Moore as contracting Page 4 of 16

8 parties and third party beneficiaries, respectively, thereby forcing them into arbitration. (R. at 71-72; RE at 5-6) Judge Weathers did not find that Katelyn was a third-party beneficiary. (R. at 70; RE at 4) Judge Weathers further found specifically that Katelyn was not a direct beneficiary under the contract and that her claims are not subject to Olshan and Brown s arguments for equitable estoppel as they sound in tort. (R. at 71; RE at 5) Olshan and Brown proceeded to appeal Judge Weathers ruling as it pertains to Katelyn only. (R. at 81-85; RE at 7-11) SUMMARY OF THE ARGUMENT The contract and its arbitration agreement does not bind Katelyn Moore because she was not listed (specifically or generally) in the contract that Phillip Moore signed with Olshan. Given that Katelyn suffers from a severe form of autism she cannot legally enter into a contract. Accordingly, any presumption that she can embrace or rely upon its terms fails because she cannot appreciate the contract s terms or even its existence. Accordingly, the Perry County Circuit Court did not find that Katelyn was subject to the arbitration clause as a third-party beneficiary or under principles of estoppel. The contract was between Olshan and Phillip Moore, as signee. The Circuit Court found Gloria Moore was a third-party beneficiary since she is a property owner. Neither Katelyn Moore s name or signature appears on the contract, and there are no clauses or provisions addressing the role or rights of non-signatories anywhere in the contract. As a result, she is not only a non-signatory, but a non-party and non-entity under the contract s four corners. Although Olshan s arbitration provision applies to Phillip Moore, as signer, and Gloria Moore, as third-party beneficiary, it does not apply to Katelyn. Failure to include Katelyn is an oversight by Olshan and it is well-settled that drafting defects or deficiencies should be construed against the drafting party; here, that is Olshan (See, Facilities, Inc. V. Rogers-Usry Chevrolet, Inc., 908 So. 2d 111 (Miss. 2005) (quoting Leach v. Tingle, Page 5 of 16

9 586 So. 2d 799, (Miss. 1991)(citing Stampley v. Gilbert, 332 So. 2d 61, 63 (Miss. 1976)). To enforce the arbitration agreement against Katelyn strips away a non-party s Constitutional right to a jury trial without anything resembling consent. Katelyn s claims for intentional and/or negligent infliction of emotional distress are particular to her and arise independently of the contract s terms. Katelyn s suffering through the subsequent chaos and stress after Olshan broke Phillip and Gloria Moore s home is wholly subjective and cannot be said to be identical to Phillip s reactions as he does not suffer from autism. The claims for emotional distress are not dependent on the contract, but rely on common and statutory law and Katelyn s claims should not be shuffled off into arbitration because her father has also suffered emotional distress. Olshan and Brown offer four (4) Mississippi cases where Mississippi courts have held that non-signatories are bound to arbitrate, but none of those cases deal with persons who have a disability similar to Katelyn. Katelyn s situation is factually distinguishable because of her inability to understand or appreciate the contract into which her parents entered. Mississippi disfavors arbitration for incompetent senior citizens and children (See, Hattiesburg Health & Rehab Center, LLC v. Brown, 176 So. 3d 17 (Miss. 2015) and Simmons Housing, Inc. v. Shelton ex rel. Shelton, 36 So. 3d 1283 (Miss. 2010), infra). Persons who lack the capacity to contract cannot be found to have embraced a contract if they are unaware of the contract. Katelyn s situation cleaves more closely to Mississippi s treatment of arbitration clauses involving the elderly and children than the cases cited by Olshan and Wayne Brown where the non-signatories were persons under no legal disability. Katelyn is not a direct beneficiary, a third-party beneficiary, or bound by principles of estoppel. The Circuit Court, therefore, did not err in denying Olshan and Wayne Brown s Motion to Compel Arbitration regarding Katelyn Moore s claims. Page 6 of 16

10 ARGUMENT A. Standard of Review A decision denying arbitration is reviewed using a de novo standard and conducts a two prong inquiry: 1) whether there is a valid arbitration agreement, and 2) whether the dispute is within the scope of the arbitration agreement. Andrews v. Ford, 990 So. 2d 820, 822 (Miss. App. 2008). Here, the trial court found that the arbitration agreement was sufficiently broad to cover Phillip and Gloria Moore, but that it did not apply to their daughter, Katelyn Moore, because she was not a signatory or party to the contract nor was she a third party beneficiary. Accordingly, because Katelyn is not a contracting party, this Court should take both prongs of the evaluation under consideration. As to the Circuit Court s determination of direct benefit estoppel, it is subject to an abuse of discretion standard of review. Jones v. Singing River Health Servs. Found., 674 F. App'x 382, 385 th (5th Cir. 2017)(citing Noble Drilling Servs., Inc. V. Certex USA, Inc., 620 F. 3d 469, (5 Cir. 2010). For the trial court to have abused its discretion, the decision must be premised on an incorrect application of law or and incorrect assessment of the evidence. Jones v. Singing River Health Servs. Found., 674 F. App'x 382, 385 (5th Cir. 2017)(citing Grigson v. Creative Artists Agency L.L.C., 210 F.3d 524, 528 (5th Cir. 2000). Olshan and Brown want to make the argument that Katelyn Moore, an autistic, nonsignatory, non-party to the contract between her parents and Olshan, must arbitrate her claims for one of the following reasons: 1) because the contract has been deemed enforceable against her parents; 2) because she is a third-party beneficiary; or 3) because she has embraced or seeks to enforce elements of the contract she is estopped from bringing suit. Conversely, Katelyn seeks to be compensated for the trauma and distress she suffered because her stable and routine homelife became chaotic and topsy-turvy while her parents dealt with Olshan s failure to fix what it promised. Her claims do not arise solely under the contract's terms, but would exist independently of the Page 7 of 16

11 contract. And, she is not capable of legally entering into, agreeing with, or even aware of any of the terms in Olshan s contract. B. Collateral Estoppel As stated above in Andrews, a threshold issue is determining whether there is a valid arbitration agreement in place. Olshan and Brown rely on the trial court s determination that the contract and arbitration agreement are valid thereby skipping the need for this Court to analyze the first step of an arbitration agreement s validity. But, the trial court found the agreement valid only against Phillip and Gloria, not Katelyn, so this step cannot be skipped. Katelyn could not contract with Olshan because all the contractual elements are not present. The elements of a valid contract are: (1) two or more contracting parties, (2) consideration, (3) an agreement that is sufficiently definite, (4) parties with legal capacity to make a contract, (5) mutual assent, and (6) no legal prohibition precluding contract formation. Adams Cmty. Care Ctr., LLC v. Reed, 37 So. 3d 1155, 1158 (Miss. 2010) (emphasis added). Katelyn was not a contracting party because she is not named specifically or as a class as part of the agreement. Element numbers four (4) and five (5) are not present because of Katelyn s autism; she lacks the capacity to contract and cannot give assent. Accordingly, Katelyn cannot be directly bound because there is not a valid agreement between herself and Olshan. Olshan and Brown cannot use collateral estoppel to prevent Katelyn from pursuing a remedy because her claims are factually different in course and impact than those of Phillip and Gloria. The offensive use of collateral estoppel suggested by Olshan and Brown is not meant to be lightly applied or done so mechanically even where identities and claims overlap; the use of collateral estoppel is an unusual exception to the general rule that all fact questions should be litigated fully in each case and where reliance on those facts are suspect it should never be applied. Marcum v. Miss. Valley Gas Co., 672 So. 2d 730, 733 (Miss. 1996). Given that Katelyn is not a party to the contract Page 8 of 16

12 and she has alleged her own emotional distress claims that arose for reasons separate from Phillip s, the facts are sufficiently disparate to avoid applying collateral estoppel. In its brief, Olshan and Brown go to great lengths describing how the contract is valid against Phillip and Gloria Moore, a decision made in the Circuit Court and not challenged by Phillip and Gloria. Perhaps Olshan and Brown should focus on the issue at hand: whether Katelyn, a severe autistic, should lose her Constitutional right to have her claims heard by a jury taken away by a contract she cannot understand or appreciate. Instead, Olshan and Brown want to contort and stretch the circuit court's finding that a valid contract exists between Olshan and Phillip and Gloria, also includes Katelyn. The circuit court found the contract valid and effective against Phillip and Gloria only. C. Equitable Estoppel and Direct Benefit Estoppel Katelyn is not subject to equitable or direct benefits estoppel. Without knowledge of the contract, she cannot embrace or knowingly benefit from it and her claims for negligent and intentional emotional distress do not rely on the contract they are independent causes of action. To apply direct benefit estoppel one of two circumstances must occur: 1) a non-signatory embraces the contract, but tries to escape its arbitration agreement or 2) a non-signatory seeks to enforce terms of the contract or actions that can only be brought in relation to the contract. Richard F. Scruggs & SLF, Inc. v. Wyatt, 60 So. 3d 758, (Miss. 2011) (emphasis added). Also, waivers of liability are not enforceable unless the limitation is fairly and honestly negotiated and understood by both parties. Rigby v. Sugar's Fitness & Activity Ctr., 803 So. 2d 497, 499 (Miss. App. 2002)(quoting Quinn v. Mississippi State Univ., 720 So. 2d 843, 851 (Miss.1998)). The arbitration agreement does not apply to Katelyn because she has not embraced the contract since she was wholly unaware that the contract exists given the extent of her condition. As a severe autistic, Katelyn cannot be seen to embrace or understand any contractual relationship. Page 9 of 16

13 Likewise, a contract does not need to exist for Katelyn to assert a claim for intentional and/or negligent infliction of emotional distress as her injuries arose from the stress and confusion to her daily life after Olshan failed to perform the contract. Olshan and Brown argue that because Katelyn lived in the home she receives a direct benefit; that she has embraced the contract. In Simmons Housing, Inc. v. Shelton ex rel. Shelton, 36 So. 3d 1283 (Miss. 2010), the Court found that simply living in the residence did not make the Shelton children direct beneficiaries of the contract and, even though their parents claims were subject to arbitration, the children s claims were not. Olshan and Brown have countered Simmons with four (4) cases (Scruggs v. Wyatt; Terminix Intern., v. Rice; Price v. Credit Acceptance Corp; and Jones v. Singing River Health Ser. Found.) to distinguish Simmons, but none of those cases have an incompetent person as a prospective contracting party: In Scruggs v. Wyatt, 60 So. 3d 758 (Miss. 2011), an attorney that was working under a joint venture agreement between his firm and another, filed suit against the other firm for failing to adequately pay him for services rendered. Richard F. Scruggs & SLF, Inc. v. Wyatt, 60 So. 3d 758, 762 (Miss. 2011). The attorney knowingly operated under the joint venture agreement and received income before filing suit. Id. Equating an attorney seeking to recover lost fees allegedly earned under a contract with an autistic individual who has suffered emotional distress fails to prove any salient point and is factually distinguishable. Terminix Inter., v. Rice, 904 So. 2d 1051 (Miss. 2004), held that a wife and homeowner, though not a signatory to the contract, was bound by the arbitration agreement because she had embraced the contract and could not, therefore, disclaim parts of it. Terminix Inter., v. Rice, 904 So. 2d 1051 (Miss. 2004). Here, Katelyn s total lack of awareness of the contract or its specific clauses cannot be seen as embracing the Page 10 of 16

14 contract and her cause of action is not contingent upon the contract s existence. This case is more in line with Gloria Moore s situation than Katelyn s. The plaintiff in Price v. Credit Acceptance Corp. entered into a Dealer Service Agreement (DSA) with defendants on behalf of a Mississippi auto dealer, but Price was not party to the agreement. Price v. Credit Acceptance Corp., No. 2:10cv81KS-MTP, 2010 U.S. Dist. LEXIS 67746, at *8-9 (S.D. Miss. June 11, 2010). The court there held that Price s claims were premised on the contract and so he could not avoid the contract s arbitration agreement. Price v. Credit Acceptance Corp., No. 2:10cv81KS-MTP, 2010 U.S. Dist. LEXIS 67746, at *9 (S.D. Miss. June 11, 2010). Katelyn s claims for emotional distress arose from the chaos that ensued after Olshan s failure, not the contract itself; the contract s terms while perhaps poorly drafted do not lead to emotional distress. And, in Jones v. Singing River Health Servs. Foundation, multiple class action suits arose out of the under-funding of Singing River Health System s employee pension plan where KPMG was the fund s manager. Jones v. Singing River Health Servs. Found., 674 F. App'x 382, 386 (5th Cir. 2017). Members of the class were not signatories to the agreement between KPMG and Singing River, but nonetheless incorporated that agreement into the class action suits, thereby relying on and enforcing specific parts of the management contract. Id. Singing River s plaintiffs directly named and relied upon the management contract whereas Katelyn s claims only mention the contract as a means to establish the case s facts, but the claims independently exist. At the hearing before Judge Weathers, Katelyn s counsel cited Hattiesburg Health & Rehab Center, LLC v. Brown, 176 So. 3d 17 (Miss. 2015), as a more accurate analogy to this matter s facts. In Brown, a nursing home resident's wife signed an admission agreement that contained an arbitration Page 11 of 16

15 provision. Hattiesburg Health & Rehab Center, LLC v. Brown, 176 So. 3d 17 (Miss. 2015). The nursing home attempted to enforce an arbitration provision when the widow filed a wrongful death claim. Id. Hattiesburg Health and Rehab Center, LLC s motion to compel arbitration was denied and on appeal the Mississippi Supreme Court found that the admission agreement was ineffective against the resident because he was incapacitated at the time of admission and that his wrongful death claim was independent of the admission agreement. Id. The Supreme Court affirmed the trial court s decision, finding that Leo Brown was not a third-party beneficiary and that he could not be bound to the arbitration agreement under direct benefit estoppel because he did not embrace the contract. Id. [T]here is simply no evidence that Leo knowingly did anything, much less knowingly seek and obtain direct benefits from the admission agreement. Hattiesburg Health & Rehab Center, LLC v. Brown, 176 So. 3d 17, 24. Like Brown, Katelyn is similarly incompetent and unable to meaningfully understand the contract.. Katelyn is distinguishable from Brown solely because the admission agreement was solely to arrange Brown s care whereas the contract here was primarily for the homeowners benefit and Katelyn was an incidental beneficiary. Thus, since this Court has previously held that Leo Brown, an elderly man who lacked the capacity to contract and was a non-signatory to a nursing home s embedded arbitration clause, was not bound to the arbitration clause, then it should rule the same for Katelyn, an autistic adult-child who neither signed nor was mentioned in the contract and certainly did not agree to give up her Constitutional right to trial in favor of arbitration. Additionally, Olshan and Brown argue that Mississippi courts have found certain disabilities to not be a hurdle to enforce arbitration agreements, namely blindness and illiteracy. While blindness and illiteracy can be impediments to a contract, the inability to comprehend a contract as a concept or its terms is a much steeper hill to climb. A contract may be recited to the blind and the Page 12 of 16

16 illiterate, whereas a fundamental inability to understand a contract as a concept is wholly different more akin to reading a contract written in English to an individual who only speaks Mandarin. Autism severely affects Katelyn s cognitive ability to understand basic concepts. D. Third Party Beneficiary Phillip and Gloria Moore entered into the contract for their own benefit to preserve the condition and value of their home. Katelyn does not have an ownership interest in the home. To bind a third-party beneficiary under a performance contract, the contract must have been entered into for [the third party s] benefit, or at least such benefit must be the direct result of the performance within the contemplation of the parties as shown by its terms. Stewart ex. Rel Womack v. City of Jackson, 804 So. 2d. 1041, 1050 (Miss. 2002) (emphasis added). The contract s terms do not contemplate Katelyn s interests or role as an occupant of the home. And, to be a third party beneficiary, Adams Cmty. Care Ctr., LLC v. Reed, states (1) When the terms of the contract are expressly broad enough to include the third party either by name as one of a specified class, and (2) the said third party was evidently within the intent of the terms so used, the said third party will be within its benefits, if (3) the promisee had, in fact, a substantial and articulate interest in the welfare of the said third party in respect to the subject of the contract. Adams Cmty. Care Ctr., LLC v. Reed, 37 So. 3d 1155, 1160 (Miss. 2010) (emphasis added). As argued by Olshan and Brown, Phillip and Gloria do have a substantial and articulate interest in Katelyn s welfare, she is their daughter, but that is only one prong of the three-part third-party beneficiary analysis. One out of three is not enough. Essentially, Olshan s contract failed to take Katelyn into account, and had the repairs gone as expected whether Katelyn was bound to arbitrate her claims would be a moot point. But, they didn t, she isn t and it s not. The contract entered into by the Moores and Olshan Foundation was a brief, two-page agreement that contained the negotiated terms on the front and small-type boilerplate language on Page 13 of 16

17 the back that included the arbitration provision. The contract includes Owner and Contractor as classes, but does not include resident, occupant, or interested party or, in fact, any other catch-all nomenclature under which Katelyn could have fallen. It goes without saying that a contract cannot bind a non-party. Equal Employment Opportunity Commission v. Waffle House Inc., 122 S. Ct. 754, 764 (2002). Any residential interest Katelyn may have in the property in no way makes her an owner of the property as set by the contract s terms. The contract and, more specifically, the arbitration clause, fails to anticipate the presence of or assert any direct right over an individual who is not an owner and has not signed the contract. Katelyn s benefit or interest, by name or class, is not contemplated at any time in any part of the contract. Olshan and Brown s argument to apply the arbitration clause to Katelyn because of a common nexus of events, could potentially lead to an absurd outcome as any person tangentially related to the work performed under the contract s terms would be pulled in and forced to arbitrate (e.g. if the work to repair Olshan s work resulted in an injury to the new workers, that too would not have happened but for Olshan s agreement to perform foundation repair, that worker s injury would also be subject to arbitration because it touches the contract). Despite the preference for arbitration clauses, a public policy argument can easily be made that where said party is ignorant of the arbitration clause and the other salient contractual terms, it should not be enforceable as it strips away Constitutionally protected rights from society s most vulnerable citizens. The Appellants have raised no serious issue about the ability to proceed by all plaintiffs against Wayne Brown, individually, without the necessity of arbitration. Since Brown was not a party to the arbitration contract, there is no question that plaintiffs claims against Brown may proceed. That being so, there will be a bifurcated proceeding, and it will work no material hardship on the Appellants to have Katelyn A. Moore s claims proceed in State Court as well. Page 14 of 16

18 CONCLUSION The boilerplate arbitration provision in Olshan s contract has no effect on Katelyn Moore s claims, as correctly determined by the Perry County Circuit Court when it held that Katelyn s claims could proceed and partially denied Olshan and Brown s Motion to Compel Arbitration. Specifically, the Circuit Court held that the arbitration provision lacked sufficient language to include Katelyn as a direct beneficiary, that she was not a third-party beneficiary, and that she was not bound to the contract under estoppel theories. For all the reasons detailed above, Appellees respectfully request that the Court affirm the ruling of the Circuit Court denying Olshan and Wayne Brown s Motion to Compel Arbitration as to the claims of Katelyn Moore. th Respectfully submitted this the 8 of September, PHILLIP R. MOORE, GLORIA MOORE, and KATELYN MOORE, Appellees By: /s/ Robin L. Roberts Robin L. Roberts, (MB #5596) Christopher D. Nobles (MB # ) Robin L. Roberts (MB #5596) Christopher D. Nobles (MB #104441) Robin L. Roberts, Attorneys at Law, PLLC P. O. Box 1953 Hattiesburg, MS (601) ; (601) (fax) robin@rablaw.net Page 15 of 16

19 CERTIFICATE OF SERVICE I, Robin L. Roberts, one of the attorneys for Appellees, do hereby certify that I have on this date forwarded a true and correct copy of the above and foregoing document via ECF system which sent notification of such filing to the following: Ms. LeAnn W. Nealey (leann.nealey@butlersnow.com) Mr. Richard M. Dye (rick.dye@butlersnow.com) Ms. Kathleen Ingram Carrington (kat.carrington@butlersnow.com) Butler Snow LLP Post Office Box 6010 Ridgeland, MS Further, I hereby certify that I have mailed by U.S. Mail, postage prepaid, the document to the following: Hon. Jon Mark Weathers Circuit Court Judge P. O. Box 830 Hattiesburg, MS th Dated this the 8 day of September, /s/ Robin L. Roberts Robin L. Roberts Page 16 of 16